October 15, 2009

Supreme Court Hands Petrocelli "First Breakthrough" for Skilling

Dan Petrocelli, a partner at O'Melveny & Myers, has represented former Enron CEO Jeff Skilling since February 2004. But until Tuesday, Petrocelli had little good news for his now-imprisoned client.

On Tuesday the Supreme Court handed Skilling his "first breakthrough in eight years of misery," Petrocelli said Wednesday in an interview from his Century City office. The justices agreed to hear his appeal, setting the stage for arguments early next year. Skilling is challenging the "honest services" fraud law under which he was convicted, and he also claims that the massive pretrial publicity and animosity toward him in Houston should have led a federal trial judge to say yes to his 2004 request for a change of venue.

As we noted here Tuesday, the Court already has on its docket two other cases examining the "honest services" statute, so Petrocelli was asked why he thought the Court would agreed to hear a third. Cautioning that it's just "reading tea leaves," Petrocelli said that one reason probably is the fact that Skilling challenges another aspect of the law: whether the government needs to prove that he got "private gain" from his alleged failure to provide honest services to his company. The law has been attacked by defense lawyers as a vague catch-all statute that federal prosecutors resort to when they cannot find more solid grounds to pursue a corporate or public official.

"There was no private gain proven in our case," said Petrocelli. "None whatsoever; no bribery, no kickbacks."

The other reason Petrocelli thinks the Court added Skilling's case to its docket was the justices' interest in the other issue he raises: juror prejudice caused by pretrial publicity and local passions. The judge's failure to move the trial from Houston "was the pivotal reason that led to his conviction," said Petrocelli. In addition to relentlessly negative news coverage, he said, "the city of Houston itself was presented as a victim." Thousands of Houston residents lost jobs and savings when Enron collapsed in 2001.

As a result, said Petrocelli, the Houston jury pool could be presumed to be prejudiced against his client. "No one could acquit Jeff Skilling and go home." The U.S. Court of Appeals for the 5th Circuit ruled that in fact the media coverage and the effect of Enron's collapse on Houston was pervasive enough to create a presumption of juror prejudice. But it said the government had rebutted the presumption by "proper and thorough" voir dire showing that a fair jury had been impanelled. Petrocelli argues that a presumption of prejudice cannot be rebutted and should have resulted in reversal of Skilling's conviction. So the issue before the high court is "what are the rules once there is a presumption of prejudice." Petrocelli said he thinks the Court can rule on that issue without making a "sweeping change" in the rules on changing trial venues due to pretrial publicity.

For its part, the government has said that Skilling's challenge to the honest services law did not merit review because it was only one of the laws he was found guilty of violating. "The jury's verdict ... would have been the same" even if Skilling was right about the honest services law, said Solicitor General Elena Kagan in her brief opposing review. Her brief also disputed Skilling's claim concerning juror prejudice. Citing jury questionnaire answers from the final pool of jurors from which Skilling's jury was picked, Kagan said, "A jury pool in which more than 85 per cent of the individuals questioned said thay they had no significant exposure to pretrial publicity is not a panel that is fatally saturated with pretrial publicity."

Comments

Excuse me? 85% of the jury said they had no significant exposure to pretrial publicity? And exactly from under which rock did these jurors crawl before they were impaneled? Were they licking their chops as they declared no significant exposure, rubbing their hands in delight at the chance to skewer the defendant who had ruined the lives of so many of their neighbors.